Notwithstanding the forthcoming argument at the high court, US District Judge Dale Kimball of Utah has gone ahead and issued a preliminary injunction (PDF), which will ban the Aereo service in Utah as well as the rest of the 10th Circuit, which includes Wyoming, New Mexico, Oklahoma, and Colorado.

Aereo is currently operating in two cities in the 10th Circuit, Salt Lake City and Denver.

Kimball ruled that Aereo’s retransmission of Plaintiffs’ copyrighted programs "is indistinguishable a cable company and falls squarely within the language of the Transmit Clause." He didn't buy Aereo's argument that its system of renting a tiny antenna to each customer allows it to avoid the "Transmit Clause" of the 1976 Copyright Act, which determines what kind of "transmissions" of copyrighted material must pay licensing fees.

Cable companies have paid TV networks "retransmission fees" to carry their content for decades now. The networks want to collect a similar toll from Aereo.

The TV networks also filed lawsuits against Aereo in New York and Boston, but didn't succeed. The New York suit rose through the appellate courts, where Aereo won again, and that's the case that is now headed to the Supreme Court.

The key case law that Aereo uses to justify its strategy is the Cablevision precedent, a 2nd Circuit case that allowed for the building of remote-DVR services. In the Utah decision, Kimball flatly disagrees with the case. He isn't bound by Cablevision, whichwas decided by the New York-based US Court of Appeals for the 2nd Circuit. Utah is in the 10th Circuit.

In Kimball's reading, the 2nd Circuit saw Congress as attempting to "distinguish between public and private transmissions." Kimball sees no such distinction, believing Congress intended the Transmit Clause to apply to a broad swath of technologies. Copyrighted works watched privately can still be "public performances" under particular circumstances (hotel video-on-demand systems, for instance). "Congress expressly used language throughout the definition section of the 1976 Copyright Act that would encompass all known or yet to be developed technologies," Kimball wrote in today's order.

Like one of the dissenters in the 2nd Circuit, Judge Denny Chin, Kimball believes that Aereo's transmission constitutes a "public performance" under the law.

And an immediate injunction is an appropriate remedy, he decides:

Every court that has considered the question of whether unauthorized Internet streaming of television and other video programming causes irreparable harm to the copyright owners has concluded that it does. Plaintiffs have amply demonstrated that Aereo’s infringing activities threaten to impair Plaintiffs’ control over its copyrighted programs, threaten Plaintiffs’ goodwill and business reputation and relationships, cause Plaintiffs to lose business and standing in the marketplace, and subject Plaintiffs’ copyrighted work to viral infringement and piracy.

While the main part of the Utah case is stayed until the Supreme Court makes a decision, Kimball didn't think it was appropriate to keep the networks waiting for an injunction.

Aereo also asked to move the case to New York; that was rejected by Kimball, too. The plaintiffs include Utah-based CBS and Fox affiliate stations, and that's enough of a link, he writes.

"This is a significant win for both broadcasters and content owners," Fox said in a statement published by The Hollywood Reporter.

"We are extremely disappointed that the District Court in Utah has chosen to take a different path than every other Court that has reviewed the Aereo technology," Aereo CEO Chet Kanojia said in a statement sent to Ars. "Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use. We are very sorry for the effect on our valued customers in the Tenth Circuit… and we will pursue all available remedies to restore their ability to use Aereo."

Aereo has been expanding rapidly over the course of the last year, and this most recent ruling could put a chill on that expansion (and of course, halt it entirely in the Western states covered by the 10th Circuit). It will allow Aereo's opponents to have a battle flag to wave when they argue their case in Washington DC; they won't have to walk in to the high court with a 3-0 record.

The Supreme Court argument over Aereo is scheduled for April 22. A decision will likely come by June.

In Kimball's reading, the 2nd Circuit saw Congress as attempting to "distinguish between public and private transmissions." Kimball sees no such distinction, believing Congress intended the Transmit Clause to apply to a broad swath of technologies. "Congress expressly used language throughout the definition section of the 1976 Copyright Act that would encompass all known or yet to be developed technologies," he wrote in today's order.

I'll have to look at the ruling, but by that logic I'm unsure how this is distinct from my own retransmission over LAN across my house. On a purely technical level.

Doesn't this interpretation mean that having a private TV antenna is retransmitting?

The clause Kimball is interpreting says that it's an exclusive right to transmit a copyrighted work "to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

Doesn't this interpretation mean that having a private TV antenna is retransmitting?

If it doesn't, it's by the narrowest of semantic margins.

(IANAL)

I'm more concerned for the computer, on my LAN, running headless with a CableCard tuner. Which then records video, and "retransmits" it over LAN to extenders elsewhere in the house.

I'm very curious, at a legal level, how a a leased antenna/computer elsewhere transmitting to my home is distinct from my own antenna*/computer trasmitting within my home. What about the physical antenna/wire/DVR/television makes it acceptable, while other arrangements (antenna/wire/DVR/wire/player/television) are not?

Because the latter is what exists in my house.

* - Cable, actually, but I could easily fall back to broadcast if I chose.

If I understand Aereo's business model correctly, they're not retransmitting anything, but rather are renting remote access to a TV antenna by which the customer can receive the broadcast.

Well...doesn't it feel like re-transmitting when you say it like that?

Not really. If (in theory) you are leasing the equipment at the other end, they aren't re-transmitting...you are. They're merely a carrier. It's equivalent to mailing yourself a recorded VHS tape (from one location to another); the USPS merely delivers your own recording to you.

Is the issue that their "leased equipment" scheme isn't legally recognized, or isn't sufficiently documented?

The difference between this case and cablevisions is that cablevision is already paying to retransmit the programs . Aereo is not.

Also I see it as aereo is basically becoming a cablecompany. Don't cablecompanies take a satellite feed and broadcast it to the companies? Aereo is doing the same thing weather it is 2 antennas or a million . they are still sending the signal to anybody else.

keep in mind that anybody who shows a movie to more then a few people Does need a license to do it. I work at a library and we had to get a license to show dvds to our patrons.

If I understand Aereo's business model correctly, they're not retransmitting anything, but rather are renting remote access to a TV antenna by which the customer can receive the broadcast.

Well...doesn't it feel like re-transmitting when you say it like that?

Not really. If (in theory) you are leasing the equipment at the other end, they aren't re-transmitting...you are. They're merely a carrier. It's equivalent to mailing yourself a recorded VHS tape (from one location to another); the USPS merely delivers your own recording to you.

Is the issue that their "leased equipment" scheme isn't legally recognized, or isn't sufficiently documented?

The problem is they are charging people . The difference is in cablevisions case they were already paying retrains fees.

Also I see it as aereo is basically becoming a cablecompany. Don't cablecompanies take a satellite feed and broadcast it to the companies? Aereo is doing the same thing weather it is 2 antennas or a million . they are still sending the signal to anybody else.

The bolded isn't settled law yet.

And that's the disagreement. If they're becoming a cable company, they only need one antenna. The whole 1:1 antenna leasing idea is why they aren't a cable company, any more than I become a cable company when I use a SlingBox.

The main question it seems is whether the remote antenna/DVR is truly "leased" to the subscriber or not. Whether that becomes effectively my property, with Aereo doing nothing more than carrying data for me.

If Aereo was a non-profit which gave the antennas at cost with reciept for write-offs, I could see their argument as valid.

Unfortunately they took the comcast approach: sell you things that you must pay for each month because hey! It doesn't look so expensive.

Renting an antenna? Please folks, just build your own.

Not always possible or feasible, especially in some rentals.

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The problem is they are charging people . The difference is in cablevisions case they were already paying retrains fees.

So? Legally it seems to depend what they're charging for. If the user is actually paying a lease on a discrete physical piece of property (the antenna) it seems quite distinct from cablevision's case (which was really about consolidating equipment).

Doesn't this interpretation mean that having a private TV antenna is retransmitting?

From a Google search, It looks like he was born in rural Utah in 1939. I am shocked, shocked I tell you to see he does not understand technology.

Automatic resort to ageism? Maybe you should point out somewhere in the opinion where he said something about the Aereo business model that shows he doesn't understand the "technology" it employs?

Otherwise I'd say he understands the technology much better than you understand the law.

Edit: Besides, the odds that this opinion was written and primarily decided upon by a 30-something clerk (who, by your logic, is certainly tech-savvy) are very high. I don't think his age has anything do with this.

What if instead of using a web site some such to access the DVR content you connected to a VM that was running on the same box where the content was stored. Then you would connect to the VM and the VM would play the content thus not technically transmitting it anywhere. You think the judge would go for that or would be too confused as to what a VM is?

Very sad that this has to end up on the Supreme Court over something in regards of ethical company growth and services no different than your local bicycle repair shop (minus the technical regulations of course). Ridiculous.

I'm curious: is the judge THE Dale Kimball? The one who sat over the infamous SCO trials?

In which case, I'd be inclined to be cautious to label him a technically illiterate "dinosaur". The man was instrumental in getting arguably one of greatest threats to OSS by the SCO slimeballs (before Prenda, there was SCO, kids! ;-) shot down.

You can still go to the Groklaw archives and read about the glorious b*tthurt he gave Darl McBride and his gang of trolls.

Considering the Public owns the airwaves in the US, Broadcast stations are broadcasting because the Public (er, the lobbiests who have Congresscritters by the scrot) have allowed them to do so. 100% of all spectrum on all frequencies in the US is owned by the People via the Gov and leased accordingly or setup for public service (in the case of Ham Radio).

Ultimately what this is about is the ratio of antennae to customers, and whether or not one can outsource their TV receiver. On one hand, that's what CableTV is (I hire you chaps to have the BUD in your hard so I don't have one), it's outsourced Antenna and Dishes.

Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use.

While I support their cause and think they should be in the clear, I disagree that it's a fundamental right. We're talking about entertainment via technology here, not human rights.

The airwaves are public property, though. "Fundamental" is probably the wrong word, but rather something guaranteed because we pay for it by way of taxes.

Also, I'd argue there is a human rights argument to be made that you're blind to because of entitlement. You see TV simply as how to find out who Snookie is fucking this week. There are a lot of people who get their news, information, educational resources, etc, through broadcast medium.

It would be like devolving the Internet as worthless because it's only good for cat memes and pornography.

Information is power and the means to control the paths that information takes is highly sought after.Just look at Comcast, Time Warner, Fox, Cox, Charter, Townsquare (or, in general, all of the consolidation of media over the last 20 years).

Better yet... why do you think Rupert Murdoch is so powerful? Or the Koch bro.s?

Information is power and the means to control the paths that information takes is highly sought after.Just look at Comcast, Time Warner, Fox, Cox, Charter, Townsquare (or, in general, all of the consolidation of media over the last 20 years).

Better yet... why do you think Rupert Murdoch is so powerful? Or the Koch bro.s?

Information is power.

Hence why so much time/effort is spent by these groups into ensuring they have the power to dictate what information you get, when you get it, and how much you pay for the stuff they'd rather you not have.

Net Neutrality keeps them from ensuring you're buying THEIR cable, cable internet, and cable phone service in one healthy lump sum.

Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use.

While I support their cause and think they should be in the clear, I disagree that it's a fundamental right. We're talking about entertainment via technology here, not human rights.

Yes, this is not a human rights issue. But, as a condition for allowing the broadcast networks to use PUBLIC spectrum congress mandated that every american has the right to use an antenna to receive that signal without being charged by the broadcasters.

Consumers have a fundamental right to watch over the air broadcast television via an antenna and to record copies for their personal use.

While I support their cause and think they should be in the clear, I disagree that it's a fundamental right. We're talking about entertainment via technology here, not human rights.

Yes, this is not a human rights issue. But, as a condition for allowing the broadcast networks to use PUBLIC spectrum congress mandated that every american has the right to use an antenna to receive that signal without being charged by the broadcasters.

Actually they should go one step further, and require geostationary satellite rebroadcast of those signals for free.

I grew up north of the border where we could only get two fuzzy TV stations. Such was the lack of content that my parents had never bothered with anything but a small B&W television. On my first visit to an American city I was shocked to see antennas atop nearly every building. I was told that Americans could get something on all 12 channels on their TV dials and that all of it was in colour.

Back then broadcasters had to set up transmitters in every city. Had it been technically possible for one transmitter in Kansas to cover the entire continent you can be sure NBC et al would have done that instead. One 1/10000th of the cost, double the number of eyes and ears. Just imagine the profits that would have generated.

Cable made the single transmitter concept possible and the internet expanded that to the entire world.

If the business of broadcasting free signals to everyone within range of your transmitter was profitable then companies like NBC would be paying cable companies and Aereo a pile of money for doing the transmitting job on their behalf.

Instead they're trying to get Aereo banned. That tells me over-the-air broadcasting is a money losing dinosaur being kept alive by regulations rather than economics.

Do I support the dinosaur or the rats feasting on the dinosaur's kill? As a mammal I should support the rodents. Go Aereo.

Reading the injunction, I'll admit it's not entirely unpersuasive. I'm on Aereo's "side," but at the same time I'm not sure their argument is gonna hold up, and I'm not entirely sure I buy it anymore. Doesn't mean I support the law, just that I think Aereo may be on the wrong side of it.

In Kimball's reading, the 2nd Circuit saw Congress as attempting to "distinguish between public and private transmissions." Kimball sees no such distinction, believing Congress intended the Transmit Clause to apply to a broad swath of technologies. "Congress expressly used language throughout the definition section of the 1976 Copyright Act that would encompass all known or yet to be developed technologies," he wrote in today's order.

I'll have to look at the ruling, but by that logic I'm unsure how this is distinct from my own retransmission over LAN across my house. On a purely technical level.

Doesn't this interpretation mean that having a private TV antenna is retransmitting?

What is happening on a purely technical level doesn't matter. It's the overall effect that matters. If you copy a CD to your harddrive, then that is fair use. If you copy the same CD to you're friend's harddrive that is unauthorized distribution, and hence copyright infringement. The computer is performing the exact same task in both cases, but it is the bigger picture of what you are doing that makes a difference.

The question here is whether Aero is to be considered a remote tuner, or a retransmission, and that will be decided more on how Aero behaves as a black-box system than on the technical details under the cover.

What is happening on a purely technical level doesn't matter. It's the overall effect that matters. If you copy a CD to your harddrive, then that is fair use. If you copy the same CD to you're friend's harddrive that is unauthorized distribution, and hence copyright infringement.

This is more akin to copying the CD on a friend's CD drive, but transmitting the MP3s as they're created to my own hard drive over the internet. Or copying the CDs to the friend's drive, on a server/account only I have access to, leaving the CD's there, and then listening to them remotely over the internet. It's not nearly as clear-cut a case of infringement as you are comparing to.

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The computer is performing the exact same task in both cases, but it is the bigger picture of what you are doing that makes a difference.

The question here is whether Aero is to be considered a remote tuner, or a retransmission, and that will be decided more on how Aero behaves as a black-box system than on the technical details under the cover.

Agreed, hence my previous post. I think the "black box" behavior of the service is relevant, and at the very least I don't suspect they've crossed enough t's and dotted enough i's on the technical side to overcome that black box behavior.

For instance, their site repeatedly refers to "your Aereo antenna." Which makes sense, if they're trying to sell the "leased antenna" theory. But then on at least one page they refer to the basic "membership," which betrays the service that the customer perceives, and which they actually intend to offer.

They aren't primarily in the business of leasing antennas, which the customers then use with the intent of leasing a "remote DVR." They are primarily in the business of selling a subscription to rebroadcast OTA networks, with the "one-to-one antenna" scheme seemingly created as a cover for a service that would otherwise be clearly infringing.

Ask a hundred random customers whether they "lease an Aereo antenna" or "have an Aereo subscription," and see what the results are.

I'm on their side, but I'm slightly more skeptical today as to their prospects than I was yesterday.